f8k121609ex10xiv_swissinso.htm


     

    Exhibit 10.14

     

     

    
      NEITHER
THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE
SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS.  THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED
OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR
THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION
OF COUNSEL (WHICH COUNSEL SHALL BE SELECTED BY THE HOLDER), IN A GENERALLY
ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS
SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT

      


      SWISSINSO
HOLDING INC.

      a
Delaware corporation

      


      9%
SECURED CONVERTIBLE NOTE

      


      $__________                                                      ______________
___,
2009                                                                           Note
No.:____

      


      FOR VALUE
RECEIVED, SWISSINSO HOLDING INC., a Delaware corporation (the “Borrower”),
hereby promises to pay to ________ (the “Holder”) the principal sum of
_______________________________________________ ($_________), with interest
accruing thereon, on the date which is 24 months from the date hereof (the
“Maturity Date”), if not
sooner paid or converted as provided herein.

       

      This 9%
Secured Convertible Note (this “Note”) is issued pursuant to
an offering by the Borrower of a series of 9% secured convertible notes
(collectively, the “Notes”) in an aggregate
principal amount not to exceed Fifteen Million Dollars ($15,000,000) in a
transaction exempt from the registration requirements of the Securities Act of
1933, as amended. Said offering is pursuant to the terms of a subscription
agreement between the Borrower, the Holder and certain other holders of the
Notes, dated of even date herewith (the “Subscription Agreement”), and
shall be governed by the terms of such Subscription Agreement.  Unless
otherwise separately defined herein, all capitalized terms used in this Note
shall have the same meaning as is set forth in the Subscription
Agreement.

       

      ARTICLE
I

      GENERAL
PROVISIONS

       

      1.1           Interest
Rate.   Interest payable on this Note shall accrue at the
annual rate of nine percent (9%) and be payable in arrears on the Maturity Date,
accelerated or otherwise, when the principal and accrued but unpaid interest
shall be due and payable, or sooner as described below.

       

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

      
 

      1.2           Prepayment.  Provided
that an Event of Default, nor an event which with the passage of time or the
giving of notice could become an Event of Default has not occurred, the Borrower
may, upon not less than thirty (30) days prior notice prepay all, or less than
all, of the principal and accrued interest thereon together with the amount of
interest that would have been payable on the amount of this Note that is being
prepaid through the earlier of the Maturity Date or the end of the calendar year
in which the prepayment is made. The Holder may exercise its conversion rights
during such thirty (30) day notice period.  Any prepayment may be in
whole or in part at any time and from time to time without prepayment charge or
penalty other than as set forth in the fiirst sentence of this Section
1.2.

      


      1.3           Security Interest.
This Note, along with all the other Notes, shall be secured by all the assets of
the Company pursuant to the terms and conditions of the Security Agreement
executed by the Borrower and each  of  the
Holders.

      


      


      ARTICLE
II

      CONVERSION
RIGHTS

      


      The
Holder shall have the right to convert the principal and any interest due under
this Note into shares of the Company’s Common Stock (“Common Stock”) as set
forth below.

       

      2.1.           Conversion into the
Borrower's Common Stock.

      


      (a)           The
Holder shall have the right, from and after the date of the issuance of this
Note and then at any time until this Note is fully paid, to convert any
outstanding and unpaid principal portion of this Note and accrued interest into
fully paid and nonassessable shares of Common Stock as such stock exists on the
date of issuance of this Note, or any shares of capital stock of Borrower into
which such Common Stock shall hereafter be changed or reclassified, at the
Conversion Price as defined in Section 2.1(b) hereof.  The number of
shares of Common Stock to be issued upon each conversion of this Note shall be
determined by dividing that portion of the principal of the Note and interest,
if any, to be converted, by the Conversion Price. Upon delivery to the Borrower
of a completed Notice of Conversion, a form of which is annexed hereto as Exhibit A, Borrower
shall issue and deliver to the Holder  that number of shares of Common
Stock for the portion of the Note converted in accordance with the
foregoing.

      


      In the
event that the Holders of at least 80% of the aggregate amount of the Notes
exercise their right to convert the Notes into Borrower’s Common Stock, the
Company shall notify the Holders not exercising their conversion right of such
exercise, and such Holders shall then be obligated to convert their Notes into
Borrower’s Common Stock.

      


      (b)   Subject
to adjustment as provided in Section 2.1(c) hereof, the conversion price per
share shall be equal to $0.50 (the “Conversion
Price”).

      


      (c)           
The Conversion Price and number and kind of shares or other securities to be
issued upon conversion determined pursuant to Section 2.1(a), shall be subject
to adjustment from time to time upon the happening of certain events while this
conversion right remains outstanding, as follows:

       

       

      
        
           

        

        
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      (i)           Merger, Sale of Assets,
etc.  If (A) the Borrower effects any merger
or  consolidation of the Borrower with or into another entity, (B) the
Borrower effects any sale of all or substantially all of its assets in one or a
series of related transactions,  (C) any tender offer or exchange
offer (whether by the Borrower or another entity) is completed pursuant to which
holders of Common Stock are permitted to tender or exchange their shares for
other securities, cash or property, (D) the Borrower consummates a stock
purchase agreement or other business combination (including, without limitation,
a reorganization, recapitalization, spin-off or scheme of arrangement) with one
or more persons or entities whereby such other persons or entities acquire more
than the 50% of the outstanding shares of Common Stock (not including any shares
of Common Stock held by such other persons or entities making or party to, or
associated or affiliated with the other persons or entities making or party to,
such stock purchase agreement or other business combination), (E) any "person"
or "group" (as these terms are used for purposes of Sections 13(d) and 14(d) of
the 1934 Act) is or shall become the "beneficial owner" (as defined in Rule
13d-3 under the 1934 Act), directly or indirectly, of 50% of the aggregate
Common Stock of the Borrower, or (F) the Borrower effects any reclassification
of the Common Stock or any compulsory share exchange pursuant to which the
Common Stock is effectively converted into or exchanged for other securities,
cash or property (in any such case, a “Fundamental  Transaction”),
this Note, as to the unpaid principal portion thereof and accrued interest
thereon, shall thereafter be deemed to evidence the right to convert into such
number and kind of shares or other securities and property as would have been
issuable or distributable on account of such Fundamental Transaction, upon or
with respect to the securities subject to the conversion right immediately prior
to such Fundamental Transaction.  The foregoing provision shall
similarly apply to successive Fundamental Transactions of a similar nature by
any such successor or purchaser.  Without limiting the generality of
the foregoing, the anti-dilution provisions of this Section shall apply to such
securities of such successor or purchaser after any such Fundamental
Transaction.

      


      (ii)           Reclassification,
etc.  If the Borrower at any time shall, by reclassification or
otherwise, change the Common Stock into the same or a different number of
securities of any class or classes that may be issued or outstanding, this Note,
as to the unpaid principal portion thereof and accrued interest thereon, shall
thereafter be deemed to evidence the right to purchase an adjusted number of
such securities and kind of securities as would have been issuable as the result
of such change with respect to the Common Stock immediately prior to such
reclassification or other change.

      


      (iii)           Stock Splits, Combinations
and Dividends.  If the shares of Common Stock are subdivided or
combined into a greater or smaller number of shares of Common Stock, or if a
dividend is paid on the Common Stock in shares of Common Stock, the Conversion
Price shall be proportionately reduced in case of subdivision of shares or stock
dividend or proportionately increased in the case of combination of shares, in
each such case by the ratio which the total number of shares of Common Stock
outstanding immediately after such event bears to the total number of shares of
Common Stock outstanding immediately prior to such event.

      
 

      
        
           

        

        
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       (d)           During
the period the conversion right exists, Borrower will reserve from its
authorized and unissued Common Stock not less than an amount of Common Stock
equal to 100% of the amount of shares of Common Stock issuable upon the full
conversion of this Note.  Borrower represents that upon issuance, such
shares will be duly and validly issued, fully paid and
non-assessable.  Borrower agrees that its issuance of this Note shall
constitute full authority to its officers, agents, and transfer agents who are
charged with the duty of executing and issuing stock certificates to execute and
issue the necessary certificates for shares of Common Stock upon the conversion
of this Note.

      


      2.2           Method of
Conversion.  This Note may be converted by the Holder in whole
or in part as described in Section 2.1(a) hereof.  Upon partial
conversion of this Note, a new Note containing the same date and provisions of
this Note shall, at the request of the Holder, be issued by the Borrower to the
Holder for the principal balance of this Note and interest which shall not have
been converted or paid.

      


      2.3.           Mandatory
Conversion.  Provided an Event of Default or an event which
with the passage of time or giving of notice could become an Event of Default
has not occurred, then the Borrower shall have the option, by written notice to
the Holder (“Notice of Mandatory Conversion”) of compelling the Holder to
convert all or a portion of the outstanding and unpaid principal of the Note and
accrued interest thereon into Common Stock at the Conversion Price then in
effect (“Mandatory
Conversion”). The Notice of Mandatory Conversion can only be given
following tewnty (20) consecutive trading days during which the average of the
closing bid and ask price for the Common Stock shall be equal to or greater than
$3.00. The date the Notice of Mandatory Conversion is given is the “Mandatory
Conversion Date.” The Notice of Mandatory Conversion shall specify the aggregate
principal amount of the Note and any accrued interest thereon which is subject
to Mandatory Conversion.  The Borrower shall reduce the amount of the
Note subject to a Notice of Mandatory Conversion by the amount of principal and
interest for which the Borrower had delivered a Notice of Conversion to the
Holder.

      


      2.4.       Registration
Rights.  The Holder has been granted certain registration
rights by the Borrower with respect to the Common Stock as set forth in the
Subscription Agreement.

      


      


      ARTICLE
III

      EVENT
OF DEFAULT

      


      The
occurrence of any of the following events of default (“Event of Default”) shall, at
the option of the Holder hereof, make all sums of principal and interest then
remaining unpaid hereon and all other amounts payable hereunder immediately due
and payable, upon demand, without presentment, or grace period, all of which
hereby are expressly waived, except as set forth below:

      


      3.1           Failure to Pay Principal or
Interest.  The Borrower fails to pay any unpaid principal and
interest under this Note on the Maturity Date, and such failure continues for
ten business days.

       

      3.2           Liquidation.   Any
dissolution, liquidation or winding up of Borrower or any substantial portion of
its business.

       

       

      
        
           

        

        
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      3.3           Cessation of
Operations.   Any cessation of operations by Borrower or
Borrower admits it is otherwise generally unable to pay its debts as such debts
become due.

       

      3.4           Receiver or
Trustee.  The Borrower shall make an assignment for the benefit
of creditors, or apply for or consent to the appointment of a receiver or
trustee for it or for a substantial part of its property or business; or such a
receiver or trustee shall otherwise be appointed.

      


      3.5           Bankruptcy.  Bankruptcy,
insolvency, reorganization or liquidation proceedings or other proceedings or
relief under any bankruptcy law or any law, or the issuance of any notice in
relation to such event, for the relief of debtors shall be instituted by or
against the Borrower.

      


      


      ARTICLE
IV

      MISCELLANEOUS

      


      4.1           Failure or Indulgence Not
Waiver.  No failure or delay on the part of the Holder hereof
in the exercise of any power, right or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power,
right or privilege preclude other or further exercise thereof or of any other
right, power or privilege.  All rights and remedies existing hereunder
are cumulative to, and not exclusive of, any rights or remedies otherwise
available.

       

       

      4.2           Notices.  All
notices, demands, requests, consents, approvals, and other communications
required or permitted hereunder shall be in writing and, unless otherwise
specified herein, shall be (i) personally served, (ii) deposited in the mail,
registered or certified, return receipt requested, postage prepaid, (iii)
delivered by reputable air courier service with charges prepaid, or (iv)
transmitted by hand delivery, telegram, or facsimile, addressed as set forth
below or to such other address as such party shall have specified most recently
by written notice.  Any notice or other communication required or
permitted to be given hereunder shall be deemed effective (a) upon hand delivery
or delivery by facsimile, with accurate confirmation generated by the
transmitting facsimile machine, at the address or number designated below (if
delivered on a business day during normal business hours where such notice is to
be received), or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice is
to be received) or (b) on the second business day following the date of mailing
by express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The addresses for
such communications shall be: (i) if to the Company, to: SwissINSO Holding Inc.,
Biopole, Route de la Corniche, 1066 Epalinges, Switzerland, with a copy by fax
only to:  Katten Muchin Rosenman LLP, 575 Madison Avenue, New York,
New York 10022, Attn: Michael Hirschberg, Esq., facsimile: (212) 894-5646, and
(ii) if to the Subscriber, to: the address and fax number indicated on the
signature page to the Subscription Agreement.

       

      
        
           

        

        
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      4.3           Amendment
Provision.  The term “Note” and all reference thereto, as used
throughout this instrument, shall mean this instrument as originally executed,
or if later amended or supplemented, then as so amended or
supplemented.

       

      4.4           Assignability.  This
Note shall be binding upon the Borrower and its successors and assigns, and
shall inure to the benefit of the Holder and its successors and
assigns.  The Borrower may not assign its obligations under this
Note.

       

      4.5           Governing
Law.  This Note shall be governed by and construed in
accordance with the laws of the State of New York without regard to conflicts of
laws principles that would result in the application of the substantive laws of
another jurisdiction.  Any action brought by either party against the
other concerning the transactions contemplated by this Agreement must be brought
only in the civil or state courts of New York or in the federal courts located
in the State and county of New York.  Both parties agree to submit to
the jurisdiction of such courts.  In the event that any provision of
this Note is invalid or unenforceable under any applicable statute or rule of
law, then such provision shall be deemed inoperative to the extent that it may
conflict therewith and shall be deemed modified to conform with such statute or
rule of law. Any such provision which may prove invalid or unenforceable under
any law shall not affect the validity or unenforceability of any other provision
of this Note.

       

      4.6           Maximum
Payments.  Nothing contained herein shall be deemed to
establish or require the payment of a rate of interest or other charges in
excess of the maximum rate permitted by applicable law.  In the event
that the rate of interest required to be paid or other charges hereunder exceed
the maximum rate permitted by applicable law, any payments in excess of such
maximum rate shall be credited against amounts owed by the Borrower to the
Holder and thus refunded to the Borrower.

       

      4.7           Non-Business
Days.   Whenever any payment or any action to be made
shall be due on a Saturday, Sunday or a public holiday under the laws of the
State of New York, such payment may be due or action shall be required on the
next succeeding business day and, for such payment, such next succeeding day
shall be included in the calculation of the amount of accrued interest payable
on such date.

       

      4.8           Shareholder
Status.  The Holder shall not have rights as a shareholder of
the Borrower with respect to unconverted portions of this
Note.  However, the Holder will have the rights of a shareholder of
the Borrower with respect to the Common Stock to be received after delivery by
the Holder of a Conversion Notice to the Borrower or after delivery by the
Borrower of a Notice of Mandatory Conversion to the Holder.

       

       

      
        
           

        

        
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      IN
WITNESS WHEREOF, this Note has been executed and delivered as a sealed
instrument on the date first above written by the duly authorized representative
of the Company.

       

       

      SWISSINSO
HOLDING INC.

       

       

      By:
_______________________

      Name:
Yves Ducommun

      Title:
Chief Executive Officer

       

       

       

      
        
           

        

        
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      Exhibit
A

      


      NOTICE OF
CONVERSION

      


      (To be
executed by the Registered Holder in order to convert the Note)

      


      The
undersigned hereby elects to convert $_________ of the principal and $_________
of the interest due on the Note issued by SWISSINSO HOLDING INC. on
______________ ___, 2009 into shares of Common Stock of SWISSINSO HOLDING INC.
(the “Borrower”)
according to the conditions set forth in such Note, as of the date written
below.

      


      


      Date of
Conversion:____________________________________________________________________

      


      


      Conversion
Price:_________________________________________________________________________

      


      


      Shares To
Be
Delivered:_____________________________________________________________________

      


       

      Signature:_____________________________________________________________________

      


      


      Print
Name:________________________________________________________________________

      


      


      Address:______________________________________________________________________

      


         _____________________________________________________________________________

      


      Social
Security/Employer

         Identification
Number:_________________________________________________________

      
 

       

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